CHICAGO — A federal judge has determined the state law that bans concealed carry at Cook County Forest Preserves doesn’t pass constitutional muster.
In an opinion issued Sept. 13, U.S. District Judge Robert Dow Jr. said the challenged Cook County firearms regulation is overbroad. But the judge paused enforcement of his ruling for six months, giving the Illinois General Assembly until March 15, 2022, “to act definitively on this matter if it chooses to do so.”
Cook County resident Simon Solomon had filed suit challenging the state law in August 2017. Solomon said he has been visiting forest preserve properties for about 40 years in Cook, DuPage and Kane counties, almost exclusively for fishing. In good weather, he fishes at the same Skokie Lagoons spot on the way home from work each night. He obtained a concealed carry license about five years ago, and shortly thereafter had two guns confiscated when a county forest preserve district police officer approached him for being on the property after sunset.
According to Dow, the Illinois Firearm Concealed Carry Act contains the express prohibition on carrying a concealed weapon on any Cook County Forest Preserve property, but does not extend that ban to preserves in other counties. Nor does it prohibit having a legal weapon in a locked vehicle. His opinion detailed criminal and firearms activity at preserves in Cook, DuPage, Kane, Lake, McHenry and Will counties.
The state moved to intervene in Solomon’s suit in a May 2019 filing, arguing its right to defend the law. Both parties sought summary judgement, leading to Dow’s opinion, which included his assertion Solomon’s challenge is to the constitutionality of the law itself, not its application, despite Solomon’s “protests to the contrary.:
In evaluating the constitutionality of the ban, Judge Dow repeatedly referenced the year 1791, when the Second Amendment was adopted to the U.S. Constitution. Judge Dow noted that date had been used by the U.S. Seventh Circuit Court of Appeals when determining whether certain firearms regulations are constitutional, taking the view that, if a kind of regulation was in existence at the time the Second Amendment was adopted, then it is presumed it would not be prohibited by the Constitution.
In attempting to prove the ban is legal, the government defendants argued “carrying weapons in wooded areas was forbidden in 1791,” at the time of the Second Amendment’s adoption, and that the entirety of the Forest Preserve District is a legally “sensitive area” not subject to typical Second Amendment protection.
“Neither argument is convincing,” Dow wrote. Although there is precedent for the legal right to carry a gun outside of a home, “how far, and where, outside the home that right extended is uncertain, and it is particularly muddy in this case because it is not clear that the framers of the Constitution had any conception of public recreational areas like the ones at issue here.”
Regarding the sensitivity of forest preserve lands, Dow said the fact children tend to gather on such property doesn’t grant lawmakers the power to extend the protection to all 70,000 acres, noting many sites are materially distinct. He contrasted the 385-acre Chicago Botanic Garden with “Bluff Spring Fen, a nature preserve that allows hiking but bars fishing and even dogs and has no obvious developments besides a parking lot.”
Dow said the government’s evidence doesn’t show how its blanket prohibition serves the need of public safety. Not all sites have high concentrations of visitors or children, there is very little evidence of gun crimes on FPDCC land, including “no violent crimes by CCL holders,” and ultimately nothing that shows a “relationship between CCL holders and threats to public safety, and no evidence that the regulations reduce crime or prevent injuries or death.”
The government could classify types of facilities that would meet the definition of “sensitive places,” Dow said, without going through each individual site or writing regulations for specific times of day. He pointed to other state laws as potential frameworks and said just because the way the challenged act is written is too broad to be constitutional doesn’t mean a fix is impossible.
“Those are judgments best left to the legislature, and the legislature ought to have an opportunity to make those judgments,” Dow wrote.
Solomon also said the law violates the Fourteenth Amendment’s due process and equal protection clauses, but Dow disagreed, saying there isn’t a path to use those rights as a means to “usurp the settled legal framework” of the Second Amendment.
Solomon has been represented in the action by attorneys Sheldon M. Sorosky, of Wilmette, and Ilia Usharovich, of Wheeling.